Citation Nr: 1536231
Decision Date: 08/25/15 Archive Date: 08/31/15
DOCKET NO. 13-30 569 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUES
1. Entitlement to an evaluation in excess of 50 percent for conversion disorder with associated essential tremor of upper and lower extremities, headache, and nervousness.
2. Entitlement to a compensable evaluation for the residuals of spontaneous pneumothorax of the right lung.
3. Entitlement to service connection for squamous cell carcinoma, basal cell carcinoma, and actinic elastosis, status post excision from the nose, to include as secondary to Agent Orange exposure.
4. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU).
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
J. L. Prichard, Counsel
INTRODUCTION
The Veteran had active service from February 1972 to February 1975 and from April 1976 to February 1980.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the Huntington, West Virginia, regional office (RO) of the Department of Veterans Affairs (VA).
The Veteran appeared at a videoconference hearing before the undersigned in June 2015. A transcript is in the record.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
The Veteran was afforded VA psychiatric and pulmonary examinations in August 2010. At the June 2015 hearing the Veteran reported that his disabilities had increased in severity since the August 2010 examinations. He is entitled to a new VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997).
Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83.
In this case, the record includes recent diagnoses of squamous cell carcinoma, basal cell carcinoma, and actinic elastosis. He has also provided competent and credible testimony to the effect that his skin growths of the nose were present at the time he was discharged from service. Therefore, VA has a duty to provide examination for the skin cancer claim.
In regards to the appeal for TDIU, it will be impacted by the outcome of the other claims. Issues which are inextricably intertwined must be considered together. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Further consideration of TDIU will deferred pending the outcome of the other appeals.
Accordingly, the case is REMANDED for the following action:
1. Take the necessary steps to verify the Veteran's exposure to herbicides such as Agent Orange while stationed in Okinawa.
2. Schedule the Veteran for a VA psychiatric examination to evaluate the severity of his service connected conversion disorder with associated essential tremor of upper and lower extremities, headache, and nervousness. The examiner must note that the claims folder has been reviewed.
3. Schedule the Veteran for a VA lung examination. The examiner must note that the claims folder has been reviewed.
6. After the development requested in paragraphs 1, has been completed, schedule the Veteran for a VA dermatology examination. The examiner must note that the claims folder has been reviewed.
The examiner should answer the following question:
a) Is it at least as likely as not that the Veteran's squamous cell carcinoma, basal cell carcinoma, or actinic elastosis of the nose began in service, or is otherwise the result of a disease or injury in active service, to include herbicide exposure?
The examiner should provide reasons for the opinion. The absence of supporting treatment records is not, by itself sufficient reason for rejecting the Veteran's reports of history or symptoms.
If the examiner is unable to provide any opinion without resort to speculation, the examiner should state whether the inability to provide the needed opinion is due to the limits of the examiner's knowledge or the medical profession in general. Any outstanding evidence that would enable the opinion to be provided should be identified.
7. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).